In United States v. Alter, 985 F.2d 105 (2d Cir. 1993) [hereinafter, "Opinion"], the Court of Appeals held that, having drawn analogies between Alter's criminal acts and several federal offenses, this Court was obliged initially to engage in the multi-count analysis of the Sentencing Guidelines, using the analogous offenses that were found by this Court to most accurately capture Alter's criminal conduct towards Donald V., Gary O., and Jose L. Opinion at 1330. As calculated by the Court of Appeals, a multi-count analysis would result in an offense level increase (above the base offense level of 10) of, at most, four levels for these acts. Opinion at 1330-31. The Court of Appeals stated that this four-level increase, when augmented by the three-level increase for the disruption of Manhattan House and the federal corrections system, would yield an offense level of 17. The resulting sentencing range would be 24-30 months. Opinion at 1331.

The Court of Appeals made clear, however, that this should not be construed as a holding that the appropriate sentence for Alter must lie within the 24-30 month range. The district court was explicitly told that, upon remand, it retained broad discretion to depart upwards beyond the seven levels dictated by application of the grouping rules to the analogous offenses identified.

If the offense of conviction or the other acts of misconduct warranting a departure are accompanied by aggravating factors not adequately considered by the Commission in setting the guideline ranges for the offense of conviction or various acts of misconduct considered under the multi-count analysis, a departure beyond the aggregate guideline range would still be available despite the use of multi-count analysis.

We now find, on reconsideration, that the analogous offenses chosen by the Court, although accurately describing certain or partial aspects of Alter's criminal conduct, do not fully capture significant aggravating circumstances previously identified by the Court.

(a) Offenses Relating to Donald V.

The group of "offenses" pertaining to Donald V. -- namely, the bribery conviction and the additional "offense" of supplying contraband to an inmate -- does not take account of significant aggravating aspects of Alter's criminal conduct towards the resident which the Court found in its opinion. The federal offense of bribery accurately captures the fact that federal halfway house director Alter illegally exacted a quid pro quo that related to the business of the halfway house; the federal crime of supplying contraband to an inmate accurately captures the additional fact that Alter provided a prohibited object to a federal inmate. These two offenses do not at all take account, however, of other highly pertinent facts emphasized by the Court in its decision. Nor, predictably, are these aggravating facts taken into account in either the guideline applicable to bribery offense, U.S.S.G. § 2C1.1, or the guideline applicable to the offense of supplying contraband to an inmate, § 2P1.2(a)(3), a guideline which has a base level of six and which applies to controlled substances other than narcotics. These unaccounted-for factors include:

(i) the fact that Donald V. was known to Alter to be a recovering drug user, and that "Alter affirmatively aggravated Donald V.'s drug abuse problem when his duty required him to mitigate it," Alter, supra, 788 F. Supp. at 772.; and that the provision of drugs by Alter to the resident inflicted a "grievous injury" upon Donald V., id. at 772;

(ii) the fact that the provider of the contraband to resident Donald V. was not just any person -- for 18 U.S.C. § 1791(a) is applicable to any person who brings a "prohibited object" into a prison, regardless of whether the person is a prison official or employee, or an outside visitor -- but the prison director himself and thus a person with direct oversight over and fiduciary responsibility towards resident Donald V.;

(iii) the fact that the nature of the contraband was not just any "prohibited object," such as a transistor radio, or a less destructive illicit substance, such as an alcoholic beverage, but was instead valium tablets and dangerous and addictive narcotic substances, including heroin and cocaine. The Court found that Alter himself distributed narcotic drugs to Donald V. and aided and abetted Donald V. in obtaining narcotic drugs, including by giving the resident cash with which to buy heroin and cocaine. Id., at 769, 772;

(iv) the fact that Alter's provision of contraband did not happen on just one occasion, but on multiple occasions. These included (A) Alter's provision of valium tablets on August 24, 1988, to Donald V. prior to the incident at Alter's apartment; (B) Alter's provision of additional valium tablets, and marijuana, during the incident that night at the apartment; (C) Alter's provision of cash to Donald V. the following morning to enable the resident to purchase heroin and cocaine; (D) Alter's provision of valium tablets to Donald V. en route to the Fire Island location prior to the weekend of August 27; (E) Alter's provision of valium tablets to Donald V. during the weekend at Fire Island; and (F) Alter's provision of cash to the resident following the weekend to enable the resident to purchase heroin and cocaine; and finally

(v) the fact that Alter's provision of drugs and access to drugs was part and parcel of a protracted pattern of harassment and improper "predatory" behavior by Alter of resident Donald V., in which Alter "exploited Donald V.'s drug dependence." Id., at 769-70.

Because these factors are aggravating in nature, and because they are not taken into account by the bribery guideline or the guideline applicable to the providing of contraband to a prison inmate, the Court is free to depart above the level set by application of multiple-count analysis to these offenses. See Opinion at 1331; see also Kim, supra, 896 F.2d at 685. In light of the extreme nature of this uncaptured conduct, a most substantial additional departure beyond the level set by the multi-count analysis is wholly appropriate.

(b) Offenses Relating to Jose L. and Gary O.

The analogous offense chosen by the Court for Alter's misconduct toward Jose L. and Gary O. is 18 U.S.C. § 2243(b), a misdemeanor which prohibits sex between a ward and a warden. The guideline applicable to this offense is U.S.S.G. § 2A3.3 As with the pair of offenses utilized in calculating the offense level applicable to the Donald V. group, this offense and corresponding guideline section (with a base level of nine) captures only a portion of the aggravating conduct in which the Court found Alter to have engaged. The statute and guideline do accurately capture, in the case of both residents, the fact that a person with "custodial, supervisory, or disciplinary authority" over a ward in official detention "knowingly engaged in a sexual act" with that ward. 18 U.S.C. § 2243(b). They do not at all take account, however, of other highly pertinent facts emphasized by the Court in its decision.

Alter, supra, 788 F. Supp. at 768-69. Among these unaccounted for aspects of Alter's conduct are:

(i) the fact that Alter exploited his "unlimited physical access to the residents," allowing him "to intrude at will at all hours upon the personal lives of its residents"; the fact that Alter had "untrammelled access to the personal files of the residents, and the most personal, sensitive, and intimate medical, psychological, and family information found there"; and the fact that Alter exploited each resident's "unique vulnerability" to being "remanded to prison or disciplined" for prior disciplinary infractions. Id. For Jose L., this entailed taking advantage of the fact that Jose L. had falsified a leave pass; for Gary O., this entailed taking advantage of the fact that Gary O. had disregarded Alter's instructions. Id. Based on this conduct, the Court termed Alter's behavior "predatory." Id.

(ii) the fact that Alter "harassed [Gary O. and Jose L.] through his constant access to them, his ability to control their movements, and his knowledge of their personal weaknesses," Alter, supra, 788 F. Supp. at 769. For Gary O., these included "forcing Gary O. to work late at night and waking him up when Gary O. tried to avoid him"; "probing into Gary O.'s personal relationship with his father" so as to demonstrate that "he wielded power over Gary O."; and "verbal harassment of the resident." Id., at 770. For Jose L., these included abuse of the fact that Alter had "effective control over Jose L.'s movements," which "enabled Alter to speak to him without interruption and without concern that: Jose L. would leave Alter's office. Alter's control over Jose L. directly facilitated the sex that Alter sought." Id.

These aggravating factors were not taken into account in the statute used by the Court as the most analogous and thus are not factored into the offense level generated by use of the multi-count analysis. Thus, the Court is free to depart above this level on the basis of these findings. See Opinion at 1331; see also Kim, supra, 896 F.2d at 685. As in the instance of the Donald V. "group" of offenses, the extreme nature of this uncaptured conduct justifies a substantial additional departure beyond the level set by the multi-count analysis.

2. Selection of Other Analogous Offenses

As an alternative approach to fashioning a sentence that properly reflects the gravity of Alter's misconduct, this Court is free, as the Court of Appeals observed, to "reevaluate," inter alia, its previous choice of analogous offenses and to adopt new analogous offenses which more fully capture the aggravating circumstances identified by the Court. Opinion at 1331; see United States v. Baez, supra at 90 (district judge would have been free to analogize to kidnapping rather than witness tampering on remand); United States v. Sprecher, 988 F.2d 318 (2d Cir., 1993) (citing the Court of Appeals' Alter decision for proposition that, on remand, District Court is free to impose sentence it believes to be appropriate based upon its "intimate knowledge of the circumstances of this case").

The multi-count analysis applied to these new analogies would result in an offense level of 24. Again, the offenses with respect to each resident would be a separate group. See §§ 3D1.1(a)(1), 3D1.2. The group of "offenses" for Jose L. and Gary O. would each have a two-point adjustment for Alter's abuse of trust, resulting in an adjusted offense level of 20 for each group. See §§ 3D1.1(a)(2), 3B1.3; § 3D1.3, application note a (add adjustments from Parts A, B, and C of chapter Three to each group). The group of "offenses" relating to Donald V. would have a two-point enhancement for obstruction of justice, resulting in an adjusted offense level of 17 for that group. For the three groups, all of which have point totals within four levels of one another, the Court would add three levels to the highest group for an adjusted offense level of 23. See §§ 3D1.1(a)(3), 3D1.4.

This total of 23 would be augmented by three levels for Alter's disruption of Manhattan House and the federal corrections system, and reduced by two levels for acceptance of responsibility. The Court thus finds that the record supports an alternative final adjusted offense level of 24, corresponding to a sentencing range of 51-63 months. The 1988 version of the Sentencing Guidelines permits reduction of the adjusted offense level by two levels for acceptance of responsibility; subsequently, the 1992 Guidelines have authorized such a reduction of three levels where a defendant "timely provides complete information concerning his own involvement in the offense," or "timely notifies authorities of his intention to enter a plea of guilty, thereby permitting the Government to avoid preparing for trial and permitting the court to allocate its resources efficiently." Compare U.S.S.G. § 3E1.1 (1988) with U.S.S.G. § 3E1.1 (1992). Here, only the two-point reduction is appropriate. In pleading guilty, Alter acknowledged only a small core of the criminal conduct later found by the Court: Alter admitted providing a weekend pass to Donald V. in exchange for the resident's participation in sexual relations. Alter in pleading guilty did not provide "complete information" concerning Donald V. Nor did his plea "permit[] the court to allocate its resources efficiently," as the limited admissions in his plea necessitated a lengthy Fatico hearing. See U.S.S.G. § 3E1.1(b) (1992); see also § 3E1.1, application note 1(a) (factors to be considered in determining whether to award three-level reduction for acceptance of responsibility include "not falsely denying any additional relevant conduct for which the defendant is accountable"). Furthermore, the Court's finding that Alter obstructed justice counsels against awarding the full three-level reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1, application note 4.

Under either authorized approach, the Court is free to impose the same 60-month sentence upon remand.

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